Opinion
December 15, 1936.
Upon appeal by petitioner from an order denying his application for a dissolution of his marriage pursuant to section 7-a Dom. Rel. of the Domestic Relations Law, the order is reversed on the law and the facts and the petition is granted, without costs. The court at Special Term denied petitioner's application upon the ground that the wife at the time she left petitioner took with her a five-year-old child of the marriage, and the evidence on the hearing did not account for the whereabouts of the child. We are of the opinion that the petitioner's testimony was sufficient upon which to base an order dissolving the marriage, notwithstanding his failure to account for the child. ( Frankish v. Frankish, 206 App. Div. 301.) Carswell, Davis and Adel, JJ., concur; Lazansky, P.J., and Hagarty, J., dissent and vote to affirm on the ground that the efforts made by the petitioner to ascertain the whereabouts of his wife were far too superficial.